Abstract

One of the ways by which Gerald Postema’s Bentham and the Common Law Tradition revolutionized the study of Bentham’s jurisprudence was by challenging the idea, made popular by Hart (both in his jurisprudential work and his interpretation of Bentham), that the study of law in general is normatively neutral. Against this view, Postema argued that one must understand Bentham’s views on law and jurisprudence in relation to his utilitarianism. At the time of publishing the book, Bentham went very much against the grain, but this view has since gained considerable support. In my paper I seek to refine it. As I see it, Bentham did not think of utilitarianism as a moral theory. Rather, he is best understood as advancing utilitarianism as a public philosophy—an end for the legislator, and only indirectly applicable for individuals in their everyday lives. This makes Bentham’s utilitarianism tied to his legal philosophy in an even deeper sense than Postema suggested. Law is not there to imitate and help enforce an already existing utilitarian morality that tells people (independently of the law) what they should do. Instead, we should think of law as a mechanism (or a technology) for generating normative guidelines (where those do not otherwise exist). The effect of this is to reverse the familiar way of understanding the relationship between law and morality.